Peace Before Prosecution By Morton Abramowitz and Paul R. Williams, The Washington Post, August 25, 2003

Just as President Charles Taylor was arriving in Ghana on June 4 to participate in negotiations sponsored by West African nations to end the Liberian war, the U.N-supported special tribunal for Sierra Leone publicly unveiled his sealed indictment as a war criminal. His indictment points up how the diplomatic process for resolving armed conflicts can be affected by independent judicial bodies — a consideration that will likely grow with creation of the International Criminal Court and the spread of ad hoc tribunals such as those created for Yugoslavia, Rwanda and East Timor.

Many involved in the peace process denounced Taylor’s indictment as undermining diplomatic efforts to bring peace to Liberia. His listed crimes related to support of rebels in Sierra Leone who had committed crimes against humanity and bore no relationship to the continuing conflict in Liberia. In their view, while the Sierra Leone tribunal was created after the British made peace in Sierra Leone possible, it was now putting at risk efforts to stop the Liberian civil war. Because Ghana’s government failed to arrest Taylor and no other government was willing to do it, many believe the indictment delayed Taylor’s departure from Liberia.

Others welcomed the indictment, arguing that it put the diplomats on notice that they were negotiating with an indicted war criminal, hindered them from appeasing Taylor in negotiations and eroded the morale of his troops and their ability to defend against rebel forces.

We do not know whether publication of the indictment prolonged the war or accelerated Taylor’s departure; the final chapter of the Liberian civil war is still being written. But this dilemma is likely to repeat itself. Potential indictments in Congo, Colombia, Sudan, Sri Lanka and Zimbabwe may influence diplomatic efforts to promote a quicker peace settlement in those places or change a terrible regime. Indictments might well further a settlement rather than retard one. Similarly a “peace process” should not be confused with actually producing peace; we have witnessed that confusion repeatedly over the past decade. In any event the role of justice and accountability in resolving armed conflict needs greater attention.

The discussion to date is crudely divided into two camps, with both well aware of the complexities involved. “Justice first” advocates emphasize the preeminence of justice and focus on creating tribunals and establishing jurisprudence. The international “realists” stress not allowing justice to interfere with the ability to make peace and end massive violence.

The reality is that justice plays an important role in the “peace process” — propelling it or delaying it. But there is no specific mechanism for reconciling as well as possible the choice between impunity and accountability. There will be more war crime cases in which the benefits of deterrence and reconciliation must be weighed against the human costs of more violence.

History is an uneven guide in such dilemmas. An indictment may further an important cause, as in Kosovo, where the Yugoslav Tribunal indicted Slobodan Milosevic for crimes against humanity just as some NATO members were losing their will to continue the air campaign — a campaign that went on to end the conflict and Milosevic’s ethnic cleansing. In Bosnia, many believe that not indicting Milosevic before negotiations made peace possible and prevented more violence. Alternatively, some argue that had the Yugoslav Tribunal indicted Milosevic for war crimes prior to negotiations rather than four years later, it might have forced NATO into defeating Bosnian Serb forces rather than accepting the de facto partition of Bosnia and allowing Milosevic to ethnically cleanse Kosovo.

There is also a recent example of a peace agreement with truly vile parties going awry. The Lome agreement on Sierra Leone incorporated Foday Sankoh — later to become an indicted war criminal — into the government, and thereby produced several more years of a horrible war. The absence of justice in that case furthered war.

Just as it is improper to politicize justice it is important to avoid the possibility of institutions of justice overwhelming the complexities of peacemaking. Today there is no effective acceptable mechanism to guide tribunals whose actions might have a significant and unexpected impact on peace negotiations. The international community has relied on the judgment of prosecutors and tribunal judges, but these are people who should not be responsible for navigating the ins and outs of diplomatic negotiations. To require them to do so politicizes the tribunal.

It is important to develop a mechanism for doing this job.

Member states of the International Criminal Court have rejected a role for the U.N. Security Council. One possible solution is to make use of the unique role of the secretary general and have the Security Council authorize him to advise tribunals, especially U.N. tribunals, on the appropriate timing to release indictments. The secretary general could advise that an indictment be sealed and announcement delayed until the conflict ends. Alternatively he could determine that peace would be served by making an indictment public. At no time should the secretary general be permitted to argue for impunity. This is one step that might save lives and better preserve the international momentum toward punishing such crimes.